Essays on Mediation

Dealing with Disputes in the 21st Century

Edited byIan Macduff

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Printed in the United Kingdom.

ToJacob Bercovitch

(1946-2011)

Professor Jacob Bercovitch, University of Canterbury, New Zealand was a pioneer instatistical approaches to international mediation, creating the first database entirelydevoted to such efforts. He was a prolific writer, influential thinker and editor publishingsixteen books and 100 scientific articles and book chapters in the field of internationalrelations, mediation and negotiations.

Editor

Ian Macduff, Teaching Fellow, New Zealand Centre for ICT Law, School of Law,University of Auckland. Formerly Associate Professor & Director of the DisputeResolution Initiative, School of Law, Singapore Management University. He has been apractising mediator for over thirty years, in commercial, environmental, policy,intercultural, family, online mediation and other fields. He is a member of theIndependent Standards Commission of the International Mediation); a trainer on theWorld Health Organisation’s multi-year ‘Health as a Bridge to Peace’ programme in SriLanka; and a member of the IMI’s Task Force on Intercultural Mediation accreditationand a Fellow of the National Center for Technology and Dispute Resolution [http://odr.info/fellows/]. He is co-editor of Ethnic Conflict and Secessionism in South andSouth East Asia (Sage, 2003); contributing author of Dispute Resolution in New Zealand(OUP 1999), and of Guidelines for Family Mediation (Butterworths, 1995) and contrib-uting author to An Asian Perspective on Mediation.E-mail: ianmacduff@mac.comAddress:Box 10,9 Byron Avenue,Takapuna 0622,Auckland, New Zealand.

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Contributors

Nadja Alexander, Academic Director, Singapore International Dispute ResolutionAcademy; Hon. Professor, The University of Queensland; Senior Fellow, DisputeResolution Institute, Mitchell Hamline School of Law. Professor Nadja Alexander hasbeen described as a practical thinker and a thinking practitioner. She is known for thepassion, energy and creativity she brings to her various roles as scholar, policy adviser,mediation practitioner and trainer.Address:1 Supreme Court LaneLevel 4,Singapore 178879.

Peter S. Adler, Ph.D. is a Honolulu-based planner and mediator specializing in publicpolicy controversies. Peter Adler is a planner, mediator, facilitator and a principal inACCORD3.0, a professional network specializing in foresight, strategy, and cooperativetrouble-shooting. Adler has worked in the government, business and the NGO sectorsand teaches advanced negotiation courses in the Department of Urban and Planning atthe University of Hawaii. Prior executive experience includes nine years as Presidentand CEO of The Keystone Center (www.keystone.org), Executive Director of theHawaii Justice Foundation, and founding Director of the Hawaii Supreme Court’sCenter for Alternative Dispute Resolution. He is the author of three books andnumerous academic and popular articles and lives and works in Hawaii. His currentprojects include the acceleration of cooperation strategies for the ozone treaty underthe UN Montreal Protocol, a negotiated ‘Joint Fact Finding’ on pesticide used by GMOcorn seed producers and their critics, and several projects on water resource manage-ment, energy production, and agricultural development.E-mail: padleraccord!@gmail.comAddress:2471 Manoa Road,Honolulu,Hawaii 96822.

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Kevin Avruch, School for Conflict Analysis and Resolution, George Mason University,USA. Kevin Avruch is Dean, Henry Hart Rice Professor of Conflict Resolution, andProfessor of Anthropology at the School for Conflict Analysis and Resolution, GeorgeMason University. He is the author of Culture and Conflict Resolution (1998), Contextand Pretext in Conflict Resolution: Culture, Identity, Power and Practice (2012) and,with Christopher Mitchell, editor of Conflict Resolution and Human Needs: LinkingTheory and Practice (2013).E-mail: kavruch@gmu.eduAddress:9122 Ashmeade Drive,Fairfax VA 22032 USA.

Dale Bagshaw, Associate Professor Dale Bagshaw Ph.D., adjunct, School of Psychol-ogy, Social Work and Social Policy, University of South Australia. Dale Bagshaw, DipSoc Stud, BA, M Soc Admin, Ph.D.: adjunct Associate Professor, School of Psychology,Social Work and Social Policy, University of South Australia (previously Head ofSchool, Director of Postgraduate Mediation Programs and the Centre for Peace, Conflict& Mediation); convenor and Chair: Elder Mediation Australasian Network and AsiaPacific Mediation Forum; Board member, Elder Mediation International Network;Editorial Board Member: Conflict Resolution Quarterly & Mediation Theory & Practice;ADR academic, researcher, practitioner and trainer.Website: http://people.unisa.edu.au/Dale.BagshawE-mail: dale.bagshaw@unisa.edu.auAddress:39, Fifth Avenue,St Peters, South Australia,Australia 5069.

Bruce E. Barnes, Chair, Grad. Certificate - Matsunaga Institute for Peace & ConflictResolution, University of Hawai’i, Honolulu. Bruce E. Barnes, LL.M Columbia Univ.NYC 1985, JD Richardson Law School, Hawaii 1977, MEd Univ. Hawai’i 1970.Fulbright Research Chair, Canada-. Univ. Saskatchewan, Canada 2011. Esau Distin-guished Visiting Professor, Menno Simons College, the Mennonite University ofCanada, Winnipeg, Manitoba, CA. 2002-2003 and 2009-2010 College Awards forExcellence in Teaching, Social Sciences. Univ. Hawai’i. Book publ.-‘Culture, Conflictand Mediation in the Asian Pacific.’ Rev. Ed. 2007. Univ. Press of America. Interna-tional ADR trainer: SE Asia, Australia, New Zealand, Viet Nam, ( Hanoi, Ho Chi MinCity, Fiji, Thailand, Guam, F.S.M.(Micronesia).E-mail: bbarnes@hawaii.eduAddress:Bruce E Barnes3936 Lanipili Place,Honolulu, Hawai’i 96816,USA.

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J.-P. Bonafe-Schmitt, Groupe d’Etude Médiation, Centre Max Weber -CNRS/université Lyon II. Jean-Pierre Bonafe-Schmitt is a researcher in sociology of law at theGroupe d’Etude Médiation-Centre Max Weber (CNRS-University Lyon II). His currentinterests include community mediation, victim-offender mediation, school mediation.He has taught mediation and conflict resolution at University Lyon, Paris, Geneva. Heis the author of ‘La Médiation: une justice douce’ Syros-alternatives, Paris, – ‘Lamédiation scolaire par les élèves’, ESF Editeur, 2000 ; ‘La médiation pénale en France etaux Etats-Unis’ LGDJ-Lextenso éditions 2010.E-mail: Jean-Pierre.Bonafe-Schmitt@ish-lyon.cnrs.frAddress:J.-P. Bonafe-SchmittGroupe d’Etude Médiation,Centre Max Weber,Institut des Sciences de l’Homme,14 avenue Berthelot,69363 Lyon cedex 07,France.

Howard Gadlin, Director Office of the Ombudsman and Center for CooperativeResolution, National Institutes of Health (retired). Howard Gadlin retired after servingas Ombudsman at the National Institutes of Health since 1999. From 1992-1998, he wasUniversity Ombudsperson and Adjunct Professor of Education, as well as director ofthe UCLA Conflict Mediation Program and co-director of the UCLA Center for the Studyand Resolution of Interethnic/Interracial Conflict. Before that he had been Professor ofPsychology and Ombudsperson at the University of Massachusetts, Amherst.E-mail: Howard.Gadlin@gmail.comAddress:7010 Braeburn Pl,Bethesda MD 20817,USA.

Michael Hwang, Senior Counsel, Arbitrator, Chief Justice (non-resident) of the DubaiInternational Financial Centre Courts. Michael Hwang is a specialist in InternationalArbitration and Mediation with a global practice. He has also concurrently been theChief Justice (non-resident) of the Dubai International Financial Centre Courts since2010. His successful mediations include one with a sovereign state, and he has writtenseveral articles on mediation.E-mail: michael@mhwang.comAddress:MICHAEL HWANG CHAMBERS LLC150 Beach Road #06-01 Gateway West,Singapore 189720.

Ethan Katsh, Professor Emeritus of Legal Studies, University of Massachusetts, andDirector, National Center for Technology and Dispute Resolution. Ethan Katsh is

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Professor Emeritus of Legal Studies, University of Massachusetts, and Director, Na-tional Center for Technology and Dispute Resolution. He is one of the founders of thefield of Online Dispute Resolution, co-author of Resolving Disputes in Cyberspace,Online Dispute Resolution: Theory and Practice and, with Orna Rabinovich-Einy,Digital Justice (to be published in February 2017). His writings in the law andtechnology field include Law in a Digital World (1995) and The Electronic Media andthe Transformation of Law (1989).E-mail: katsh@legal.umass.eduAddress:Ethan Katsh67 Richard Road,Needham, MA 02492 USA.

Prof. Michelle LeBaron, Professor of Law, Peter A. Allard School of Law; Knut andAlice Wallenberg Fellow, Stellenbosch Institute for Advanced Studies, South Africa(2015-2017); Fellow in residence Trinity Long Room Hub, Dublin (2016). MichelleLeBaron is a psycho-legal scholar with an interest in the role of arts in transformationof global political/religious conflicts. Her work includes a focus on using expressivearts practices – particularly movement and dance – to train mediators and informprocess design.Address:Peter A. Allard School of LawUniversity of British Columbia,Vancouver,Canada V6T 1Z1

Serge Loode, Director, Peace and Conflict Studies Institute Australia (PaCSIA), Bris-bane, Australia, (http://www.pacsia.com.au); Sessional Lecturer, School of PoliticalScience and International Studies and TC Beirne School of Law at The University ofQueensland, Brisbane. Dr Serge Loode is a practitioner, trainer and academic workingin conflict resolution and peacebuilding. Originally from Germany, Serge worked as acivil law lawyer before developing his conflict resolution practice. Serge designs andconducts workshops for communities, businesses and government agencies that helpparticipants to relate across difference, manage uncertainty and understand complex-ity. He regularly trains mediators and conciliators from a number of Queenslandgovernment agencies and councils. Serge’s research and practice focus is on publicdialogue processes and dialogical engagement, and he works with a number ofculturally diverse communities in Australia and the Pacific.Address:6/63 Bellevue Tce,St Lucia, Qld 4067,Australia.

Carrie Menkel-Meadow, Chancellor’s Professor of Law and Political Science, Univer-sity of California, Irvine and A.B. Chettle Professor of Law, Dispute Resolution andCivil Procedure, Georgetown University Law Center. Carrie Menkel-Meadow is a law

Contributors

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professor in the United States who was one of the first to teach, write about and practicemediation and ADR. She is the author of ten books and over 200 articles on disputeresolution, legal education, legal theory, feminist theory, legal ethics and relatedsubjects, including Complex Dispute Resolution (3 volumes, Ashgate Press, 2013),Dispute Resolution Beyond the Adversarial Model (3rd ed. 2017), Mediation: Practice,Policy and Ethics (2nd ed. 2013), and What’s Fair: Ethics for Negotiators (2004).E-mail: cmeadow@law.uci.eduAddress:Carrie Menkel-MeadowChancellor’s Professor of Law (and Political Science)University of California Irvine School of Law,401 E. Peltason Drive,Irvine, California 92697.

Christopher W. Moore, Ph.D., Partner at CDR Associates. Christopher Moore, Ph.D.,Partner at CDR Associates, has worked in the field of collaborative decision-makingand conflict management for more than thirty-seven years. He has worked in overforty-five countries where he provides assistance to governments, the private sectorand non-governmental organizations in multiparty facilitation and mediation, disputeresolution systems design and capacity building. Moore specializes in resolvingpost-war, public policy, environmental, land, water and organizational disputes. He isthe author of The Mediation Process: Practical Strategies of Resolving Conflict (SanFrancisco: Jossey-Bass, 4th ed., 2015), and co-author of The Handbook for Interna-tional and Intercultural Negotiation (San Francisco: Jossey-Bass, 2010).E-mail: cmoore@mediate.orgAddress:4696 Broadway Street, Suite 1,Boulder, CO 80304.

Orna Rabinovich-Einy, Lecturer (with tenure), University of Haifa Faculty of Law.Orna Rabinovich-Einy is a senior lecturer (with tenure) at the Faculty of Law at theUniversity of Haifa. Her areas of expertise are alternative dispute resolution (ADR),online dispute resolution (ODR), and civil procedure, with research focusing on therelationship between formal and informal justice systems, dispute resolution systemdesign and the impact of technology on dispute resolution. Rabinovich-Einy is a fellowof the Haifa Forum of Law and Society, the Haifa Center for Law and Technology, andthe Center for Information Technology and Dispute Resolution at UMass, Amherst.Rabinovich-Einy holds a doctorate in Law (J.S.D.) degree from Columbia University.She was admitted to the Bar in Israel (1998) and in New York (2001), and was certifiedas a mediator in New York by the Safe Horizon Mediation Center (2003).Address:Faculty of Law,University of Haifa,Abba Khoushy Ave 199, Haifa, 3498838,Israel.

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John Sturrock QC, founder, Chief Executive and Senior Mediator at Core Solutions,Edinburgh, Scotland. John Sturrock QC is founder, chief executive and senior mediatorat Core Solutions, Scotland’s pre-eminent mediation and dispute resolution service. Heis recognized as Scotland’s leading mediator and one of the foremost in the UK,mediating in a wide range of sectors in the UK, Europe and the Middle East. He alsoworks as a mediator from the leading barristers’ chambers, Brick Court, London and isa member of a number of international panels. His work extends to coaching,facilitation and advisory work with business, government, high performance sport andmembers of parliaments throughout the UK. John is a Distinguished Fellow of theInternational Academy of Mediators.Website: www.core-solutions.comAddress:John SturrockCore Solutions Group Limited,10 York Place,Edinburgh,EH1 3EP,UK.

Thomas Trenczek, Professor of Law; Dr iur., M.A., reg. Mediator (BMJ, Vienna)/mediation trainer (BMWA), Steinberg Institute for Mediation & Conflict ManagementHannover, Germany (http://www.simk.net); Visiting Scholar Griffith Law School/Legal Practice Center, Griffith University, Brisbane. Dr Thomas Trenczek is Professor ofLaw at the Ernst Abbe University in Jena, Germany, where he teaches criminal andjuvenile law as well as mediation and conflict management. He holds both German lawdegrees, a Ph.D. in Law as well as an M.A. in Social Sciences. In 1987-88, he has spenta year of research about victim-offender-mediation in the USA where he also got hisinitial mediator training. During the period of 1988-1991, he was secretary general ofthe German Association of Juvenile Courts. In 2001-2002, 2006 and 2011 he has beena visiting scholar of the University of Queensland and Griffith University, bothBrisbane, Australia doing research in ADR. He is an accredited mediator and mediationtrainer in several countries. He is cofounder and president of the non-profit WAAGEDispute Resolution Center in Hanover, one of the major agencies in restorative justiceand non-profit dispute resolution in Germany. He is the author of several books (e.g.[German] Handbook of Mediation and Conflict Management) and numerous articlesincluding ‘Conflict Management in Civil Society’, ‘Mediation in Germany’, ‘Law inMediation’ and ‘Guide to Conflict Mediation’.Address:Thomas TrenczekSteinberg Institute for Mediation and Conflict Management (SIMK)Steinbergstr. 430559 HanoverGermany

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Beate Voskamp & Stefan Kessen, mediators, moderators, trainers, managing partnersof the MEDIATOR GmbH (Berlin). Since 1992, MEDIATOR GmbH have worked asprofessional mediators, moderators in public domains and in economy contexts.Themed with the motto ‘We organize communication and cooperation’ we encouragea mutually understanding towards sustainable, long-term solutions for all partiesinvolved.Address:MEDIATOR GmbHMediation Konfliktberatung,Bölschestraße 114, D-12587 Berlin.

Peter Wallensteen, Professor of Peace and Conflict Research, Uppsala University,Uppsala, Sweden and University of Notre Dame, In., USA. Head of the Department ofPeace and Conflict Research, Uppsala, 1972-1999. He directed the Uppsala ConflictData Program (UCDP) during the period 1978-2015. Since 2006 he has been workingalso with the Kroc Institute of International Peace Studies, Notre Dame. His QualityPeace (Oxford University Press, 2015) broadens the perspective on post-war peacebuilding; Peace Research: Theory and Practice (Routledge 2011, in Chinese 2014) bringstogether his studies on war causes, conflict resolution, sanctions and academicdiplomacy; Understanding Conflict Resolution is in its fourth, revised edition (Sage,April 2015, also in Arabic, Korean and Chinese). With Isak Svensson he published TheGo-Between on mediation experiences (USIP Press 2010) and they are soon publishinga book on Nordic mediators.E-mail: peter.wallensteen@pcr.uu.seAddress:Department of Peace and Conflict ResearchUppsala University, Gamla Torget 3,PO Box 514,SE 751 20 Uppsala,Sweden.

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Summary of Contents

Editors vii

Contributors ix

Acknowledgement xxix

Essays on Mediation: IntroductionIan Macduff 1

CHAPTER 1‘Mediation: Elephant or Heffalump?’Kevin Avruch 5

CHAPTER 2Remembrance of Pleasures Past: Reflections of a PractitionerHoward Gadlin 13

CHAPTER 3The Future of Mediation Worldwide: Legal and Cultural Variations in theUptake of or Resistance to MediationCarrie Menkel-Meadow 29

CHAPTER 4Two Failed Mediations and the Lessons Learnt from ThemMichael Hwang 47

CHAPTER 5Challenging the Status QuoJohn Sturrock QC 53

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CHAPTER 6Elder Mediation: Context, Opportunities and ChallengesDale Bagshaw 63

CHAPTER 7Munich, Majors and MediationPeter Wallensteen 81

CHAPTER 8Collaborative Dispute Resolution Assistance for Refugees, Internally DisplacedPersons and Host CommunitiesChristopher Moore 89

CHAPTER 9The Roles of Culture: Muslim Country Leaders, NGOs, and European Small-Country Leaders as International Mediators in Southeast AsiaBruce E. Barnes 125

CHAPTER 10Rocks on the Road: Inside the Pandora’s Box of CulturePeter S. Adler 137

CHAPTER 11Social Mediation Forms in FranceJ.-P. Bonafé-Schmitt 153

CHAPTER 12Embedding Mediation and Dispute Resolution into Statutory Civil Law:The Example of GermanyThomas Trenczek & Serge Loode 177

CHAPTER 13The HOW and the WHAT: Precise Conflict Resolution in Complex Processesthrough the Example of the Mediation, “Zukunft Landwehrkanal Berlin”(Future Landwehrkanal Berlin)Beate Voskamp & Stefan Kessen 193

CHAPTER 14Digital Conflict and Digital JusticeEthan Katsh & Orna Rabinovich-Einy 205

CHAPTER 15Leaving Disputants to Their Own Devices: The Vulnerable Potential ofMobile Access to JusticeIan Macduff 219

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CHAPTER 16The Alchemy of Mediation: Aesthetic Wisdom for a Fragmented AgeNadja Alexander & Michelle LeBaron 249

Index 271

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Table of Contents

Editors vii

Contributors ix

Acknowledgement xxix

Essays on Mediation: IntroductionIan Macduff 1

CHAPTER 1‘Mediation: Elephant or Heffalump?’Kevin Avruch 5Bibliography 11

CHAPTER 2Remembrance of Pleasures Past: Reflections of a PractitionerHoward Gadlin 13§2.01 Preface 13§2.02 Doing Good Work 14§2.03 Art and Tools of the Craft 14§2.04 Theory versus Practice 15§2.05 Understanding Effectiveness 16§2.06 The Workman 17§2.07 Improvisation 20§2.08 The Repertoire 22§2.09 Connections and Grooves 23§2.10 The Reflective Observer 24Bibliography 27

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CHAPTER 3The Future of Mediation Worldwide: Legal and Cultural Variations in theUptake of or Resistance to MediationCarrie Menkel-Meadow 29§3.01 Legal Variations in the Use of Mediation 35§3.02 Cultural Factors in the Use of Mediation 39§3.03 Some Concluding Thoughts 45

CHAPTER 4Two Failed Mediations and the Lessons Learnt from ThemMichael Hwang 47§4.01 Case 1 47§4.02 Case 2 49

CHAPTER 5Challenging the Status QuoJohn Sturrock QC 53§5.01 Some Questions 54§5.02 Choosing How We Respond 55§5.03 Challenges for Mediators? 57§5.04 Looking Ahead 59§5.05 A Movement of Mediators? 61

CHAPTER 6Elder Mediation: Context, Opportunities and ChallengesDale Bagshaw 63§6.01 Introduction and Background 63§6.02 What Is Elder Mediation? 64§6.03 Challenges for Elder Mediators 66

[A] Ageism 66[B] Elder Abuse 66[C] Gender and Power 68[D] The Issue of Culture 69

§6.04 Guiding Principles and Ethical Issues in Mediation 70[A] Impartiality 70[B] Self-determination 70[C] Where an Older Person has Diminished Capacity 71[D] The Principle of Affirmation, Encouraging Feelings of

Self-Worth 72[E] The Role of Support Persons 72[F] Confidentiality 72[G] Best Interests and ‘Substituted Judgment’ 73[H] Mediator Competency 73

§6.05 Determining Whether Elder Mediation Is Appropriate 74

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§6.06 Conclusions 75Bibliography 76

CHAPTER 7Munich, Majors and MediationPeter Wallensteen 81§7.01 Challenges to Mediation 81§7.02 Dealing with the Munich Syndrome 82§7.03 Dealing with the Major Power 83§7.04 A Final Note on Institution Building 85Bibliography 86Electronic Resources 87

CHAPTER 8Collaborative Dispute Resolution Assistance for Refugees, InternallyDisplaced Persons and Host CommunitiesChristopher Moore 89§8.01 Refugees and Internally Displaced Persons: A Serious Human Cost of

Wars 89§8.02 The Current Refugee and IDP Crisis 90§8.03 Causes of the Humanitarian Crisis and What Is to Be Done? 91§8.04 Collaborative Dispute Resolution, Refugees and IDPs and Affected

Communities 92§8.05 Situations and Types of Conflicts Encountered by Refugees, IDPs, and

Affected Communities 94[A] Emergency Situations 94[B] Transit 95[C] Brief or Extended “Temporary” Settlement During Protracted

Crises 95[D] Post-conflict Returns 98[E] Permanent Resettlement 98[F] Compensation for Losses 99

§8.06 CDR Responses to Humanitarian Crises: Institutional Arrangements,Service Providers, and Procedures 100[A] Unilateral International Governmental Organization (IGOs) CDR

Assistance and Coordination with National Governments 100[1] UN Habitat and the UNHCR in the Democratic Republic of

Congo (DRC) 100[2] United Nations Development Programme (UNDP)

and the Government of Timor Leste’s Ministry of SocialSolidarity (MSS) 101

[3] UNHCR, National Governments and NGOs andDispute Resolution in Refugee Camps 102

[4] UNHCR and the Government of the Islamic Republicof Iran’s Dispute Settlement Committees 104

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[B] National Governments 105[1] The Government of Timor Leste, Ministry of Justice,

Land and Property Directorate 105[2] The Government of the Democratic Socialist Republic of

Sri Lanka and World Bank’s North East HousingReconstruction Program (NEHRP) 106

[C] International Non-Governmental Organizations (INGOs) 108[1] The Norwegian Refugee Council (NRC) in Afghanistan,

Liberia, Lebanon and Jordan 108[2] Mercy Corps’ CDR Assistance in Iraq and Jordan 112

[D] National NGOs and CBOs 113[1] Local Peace Committees in Liberia and the United

Nations 113[2] Commissions d’Accueil et Reinsertion (CAR) and

NRC in the Democratic Republic of Congo (DRC) 114§8.07 Issues in Providing CDR Assistance 116

[A] Bargaining in the Shadow of the Law and Substantive andProcedural Justice: But Which Law? 116

[B] Managing Power Differences between Disputants andProtection of Vulnerable Parties 118[1] Legal Status and Enforcement of Agreements 121[2] Sustainability—Temporary or Permanent Solutions

and Promotion of Ongoing Peace 122§8.08 The Future of CDR for Displaced Persons and Affected Communities 124

CHAPTER 9The Roles of Culture: Muslim Country Leaders, NGOs, and EuropeanSmall-Country Leaders as International Mediators in Southeast AsiaBruce E. Barnes 125§9.01 Culture and Muslim Country Leaders, NGOs as International

Mediators in Southeast Asia 125§9.02 The Status of Mindanao Muslims: Population Comparisons and

Trends 126§9.03 The MNLF and MILF: Developments in Mindanao Conflict

Resolution, Peace Processes and the Role of Multiparty Mediation 127§9.04 International Mediation in Aceh, Indonesia 128§9.05 Southern Mindanao: Mediating Fault Lines? 128§9.06 Mediator Selection and Cultural Considerations in the Mindanao

Conflicts 129§9.07 Sabah, Malaysia: Connections to the Bangsamoro Conflict 131§9.08 Mediation Style: Indonesia: Culture, Standing and Informal

Diplomacy 132§9.09 Malaysia’s Role Facilitating the GRP/MILF Peace Talks, Ancestral

Domain 133

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§9.10 Lessons for International Mediation in ASEAN and Other Global FaultLines 135

Bibliography 135

CHAPTER 10Rocks on the Road: Inside the Pandora’s Box of CulturePeter S. Adler 137§10.01 137§10.02 139§10.03 141§10.04 144§10.05 147§10.06 149§10.07 150

CHAPTER 11Social Mediation Forms in FranceJ.-P. Bonafé-Schmitt 153§11.01 Social Mediation: Conceptual Fuzziness 154

[A] The Original Conceptual Fuzziness 154[B] Maintaining Conceptual Fuzziness 156

§11.02 Social Mediation Related to Dispute Resolution 158[A] Para-Judicial and Municipal Neighborhood Mediations: A

Rationale of Social Integration 158[B] Neighborhood or Community Mediation: A Rationale of

Reappropriation 161§11.03 Social Mediation Related to Communication 163

[A] The Mediation Activities of “Femmes-Relais” (Relay Women):A Rationale of Intercultural Communication 163

[B] “PIMMS” Mediation Activities: A Rationale of InstrumentalCommunication 167

§11.04 Social Mediation Related to a Security Rationale 169[A] Mediation Activities in the Public Transportation Sector: The

Security Rationale 169[B] Mediation Activities in Public Areas: A Rationale of Social

Pacification 171§11.05 Conclusion 174

CHAPTER 12Embedding Mediation and Dispute Resolution into Statutory Civil Law:The Example of GermanyThomas Trenczek & Serge Loode 177§12.01 Introduction 177§12.02 The Constitutional and Legal Context: The German Justice System 178§12.03 The Development of Mediation in the German Context 180

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§12.04 Definitions and Requirements in Mediation According to the GermanMediation Act 2012 182

§12.05 Mediation in Practice in Germany 186[A] Access to Mediation Services in Germany 186[B] Areas of Mediation Practice 187

[1] Commercial Mediation 188[2] Family Mediation 188[3] Victim-Offender Mediation 189[4] Community Mediation 189

[C] Process Considerations 190[D] Mediator Qualification and Accreditation 191

§12.06 Conclusion 191

CHAPTER 13The HOW and the WHAT: Precise Conflict Resolution in Complex Processesthrough the Example of the Mediation, “Zukunft Landwehrkanal Berlin”(Future Landwehrkanal Berlin)Beate Voskamp & Stefan Kessen 193§13.01 Introduction 193§13.02 Mediation “Zukunft Landwehrkanal Berlin”: The Beginning 194§13.03 Public Event and Preparation Phase 195§13.04 The HOW before the WHAT 196§13.05 Dynamic Multi-level Design 197§13.06 Precise Clarification of Interests 198§13.07 Specific Results and Achievements 201§13.08 Concluding Observations 202

CHAPTER 14Digital Conflict and Digital JusticeEthan Katsh & Orna Rabinovich-Einy 205§14.01 Introduction 205§14.02 More Disputes: ‘Conflict as a Growth Industry’ 207§14.03 More Resolution: Resolving Disputes through Technology 209§14.04 More Prevention: Data-Driven Dispute Prevention 213

CHAPTER 15Leaving Disputants to Their Own Devices: The Vulnerable Potential ofMobile Access to JusticeIan Macduff 219§15.01 Context and Provocation 220§15.02 Foundations 223§15.03 Current Developments Revisited 226§15.04 Digital Intermediaries in Crisis and Conflict Setting 233§15.05 Implications 237

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§15.06 Impact 238§15.07 Conclusion 245

CHAPTER 16The Alchemy of Mediation: Aesthetic Wisdom for a Fragmented AgeNadja Alexander & Michelle LeBaron 249§16.01 Introduction 249§16.02 Preparing the Ground for Mediation: The Element of Earth and the

Alchemic Process of Coagulatio 250[A] Coagulatio in Action: Science and Aesthetics 251[B] Coagulatio in Mediation Practice 253

§16.03 Flow in Mediation: The Element of Water and the Alchemic Processof Solutio 254[A] Solutio in Action: Science and Embodied Aesthetics 255[B] Solutio in Mediation Practice 257

§16.04 Exploring the Space of Identity in Mediation: The Element of Air andthe Process of sublimatio 259[A] Sublimatio in Action: Theory and Practice 259[B] Sublimatio in Mediation Practice 261

§16.05 Dynamics and Mobilization in Mediation: The Element of Fire and theProcess of Calcinatio 262[A] Calcinatio in Action: Contagion 263[B] Calcinatio in Action: Embodied Resilience 264[C] Calcinatio in Mediation Practice 265

§16.06 Alchemy in Conflict Resolution Practice: Systemic Constellations atWork 266

§16.07 Conclusion 269

Index 271

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CHAPTER 3

The Future of Mediation Worldwide: Legaland Cultural Variations in the Uptake of orResistance to MediationCarrie Menkel-Meadow*

Mediation, a relatively simple but age-old dispute resolution process of third-partyfacilitated negotiation to resolve a dispute between or among two or more parties inconflict, has emerged as a significant new method of dispute resolution in anever-increasing number of countries, legal systems, case types and most recently, inthe transnational and international arena of disputes involving both public and privateparties from different nation-states. Many nations now require or regulate the use ofmediation in their legal systems, while private practitioners, trained in a variety ofdifferent professional disciplines, now offer services in conflict resolution, both insideand outside of formal legal institutions, in areas ranging across commercial, civil,criminal, family, labor and employment, community, finance, tax, policy, diplomacy,environmental and governmental arenas. While mediation, as a process, is thousandsof years old – finding its origins in Chinese and African dispute resolution processes –in its modern incarnation, the current use of mediation in formal litigation and otherdisputes is often attributed to the newer “A” (alternative/appropriate) dispute resolu-tion revolution of the 1970s and 1980s.1 In recent years, the use of mediation has been

* This essay is based on a longer article, Variations in the Uptake of and Resistance to MediationOutside of the United States, presented at the 2014 Fordham Conference on InternationalArbitration and Mediation and to be published in Contemporary Issues in International Arbitra-tion and Mediation (Nijhoof Publications 2015). Thanks to Arthur Rovine for permission toreprint portions of that paper here and for hosting the 2014 Fordham Conference and to CarolLiebman, Ian Macduff, and Kathleen Scanlon for comments on the ideas presented here and forcolleagueship in our mediation work.

1. See Carrie Menkel-Meadow, Lela Love, Andrea Kupfer Schneider & Jean Sternlight, DisputeResolution: Beyond the Adversarial Method (2nd ed., Aspen Wolters Kluwer 2011). The “origins”of the modern American movement are often located in the now classic article by Frank Sander,

29

differentially accepted and resisted in dozens of countries, seeking to promote media-tion for different reasons, sometimes with conflicting goals, ideologies and practices –more efficient claim handling or more qualitative human reconciliation and moretailored and flexible outcomes. This essay looks at some of those variations in uptakeand resistance and offers some possible explanatory factors, including a taxonomy ofdifferent legal-cultural orientations to disputing and conflicts, in the differential useand acceptance of mediation, at a deeper – not merely legal regulatory – level.

While some modern law and social reformers sought to increase the use ofmediation to improve methods of human communication and legal problem solvingand to permit more tailored outcomes to recognize a different form of “justice,” otherssought to employ mediation techniques to reduce the work of formal courts or to makedispute processing more “efficient” – what I have called the “qualitative” versus“quantitative” differences in values promoting the use of mediation. These differentvalues or motivations for mediation have now produced great variation in the desire forregulation of mediation, whether to encourage and incentivize the use of mediation,protect or inform consumers and users of the process, control and limit the kinds ofprofessionals who may engage in such practices, or to make what was a more privateprocess, somehow accountable and more publically transparent to avoid the “privati-zation of justice.”

There is implicit in all regulation of mediation and its uses a tension betweenindividual party choice and control over process and outcome and the need of any legalsystem to decide when and how the state may intervene in and control the ways inwhich society’s disputes are resolved. Concrete incentives for the use or non-use ofmediation include a variety of practical issues such as requiring “mandatory” media-tion, fee structures, cost sharing, location of mediation, confidentiality rules, monitor-ing of and penalties for “good faith” behavior in mediation, variations in behavior ofthe mediator (facilitative or evaluative, caucus or no caucus), individual or aggregateparties, variations in enforcement of mediation agreements (simple contract or state ornotarized settlement order), sanctions or taxes on failed settlements, ethical rules,information sharing (discovery) requirements and obligations. These concrete policychoices and regulations are expressions of significant issues of jurisprudence, politicaland legal legitimacy, and legal and social practice, and they vary within different legaland social cultures. How these values are expressed formally in legal policy will anddoes affect whether and how mediation is used and practiced in different legal cultures.

There clearly is some resistance to the use of mediation in many parts of theworld, as recently documented in the European Parliament report, “Rebooting theMediation Directive: Assessing the Limited Impact of Its Implementation and Propos-ing Measures to Increase the Number of Mediations in the EU.”2 There is great variationin the use of mediation in Asia where, for example, it is used for more commercial

Varieties of Dispute Processing, 70 F.R.D. 111 (1976). See also Richard Abel, ed., The Politics ofInformal Justice, Vols 1 and 2, the American and the Comparative Experience (Academic Press1982) and Carrie Menkel-Meadow, Dispute Processing and Conflict Resolution: Theory, Practiceand Policy (Ashgate 2003).

2. Study prepared for Legal and Parliamentary Affairs, European Parliament, Policy Department C,Citizens’ Rights and Constitutional Affairs (Directorate General for Internal Policies) by Giuseppe

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matters in China and for more domestic-family relations and conciliation matters inJapan;3 in South America where Argentina has made mediation mandatory in manycivil law settings and other countries continue to resist both mediation and arbitration;and even in different provinces and states in Australia and Canada. It is also true that,although so many claim that mediation is now “mainstream” in the United States andthere is quite variable uptake of mediation at the present time in the United States (byboth state and case type variations),4 there has clearly been a temporal (nowthirty-year) period of initial resistance to and now greater acceptance (but not withoutits continuing skeptics and critics5) of mediation in the United States.

Resistance to mediation is, in my view, a product of many different forces andvariables including both social and legal culture, history (or time in conventionalterms), economics and legalism or legality. The interesting question is whether thehistorical trajectory of mediation acceptability in different sectors of any legal systemwill take, or has taken, a similar course in different countries and “transnationally,” orwhether the acceptability of mediation is itself likely to remain culturally differentiated,even as the world becomes legally “globalized.”6

Unlike arbitration, which is typically subject to more formal rules, laws, andtreaties and increasingly, international administrative institutions that monitor oradminister arbitral processes, mediation offers the possibilities of being both moreinformal and more sensitive to intercultural differences. Mediation allows greaterprocess, procedural rule and outcome control by the parties7 because of its flexibility indesign and practice, but it also has risks of social and legal cultural “colonization”8 and

De Palo, Leonardo D’Urso, Mary Trevor, Bryan Branon, Romina Canessa, Beverly Cawyer, L.Reagan Florence, 2014 [hereinafter Rebooting EU Mediation Report].

3. Klaus J. Hopt & Felix Steffek, eds. Mediation: Principles and Regulation in Comparative Perspec-tive, 94 (Oxford Univ Press 2013).

4. Carrie Menkel-Meadow, Informal, Formal and Semi-Formal Justice in the United States in CivilProcedure in Cross-Cultural Dialogue: Eurasia Context (Dmitry Maleshin, International Associa-tion Of Procedural Law, World Conference on Civil Procedure, Statut Publ. Moscow 2012); CarrieMenkel-Meadow, Alternative/Appropriate Dispute Resolution in Context: Informal, Formal andSemi-Formal Legal Processes, in Handbook of Conflict Resolution (3d ed., Peter Coleman andMorton Deutsch, Jossey Bass Wiley 2014).

5. Judith Resnik, Many Doors? Closing Doors? Alternative Dispute Resolution and Adjudication, 10Ohio St. J. of Disp. Resol. 211 (1995). At the international level, this critique has expanded to aconcern that the use of too much exportation of ADR will harm or impede the “rule of Law” in avariety of transitional or development contexts, see e.g., Cynthia Alkon, Lost in Translation: CanExporting ADR Harm the Rule of Law Development, J. of Disp. Resol. 1 (2011); Jean Sternlight, IsAlternative Dispute Resolution Consistent with the Rule of Law? Lessons from Abroad, 56 DePaulL. Rev. 569 (2007).

6. Carrie Menkel-Meadow, Why and How to Study Transnational Law, 1 University of California,Irvine Law Review 97 (2011).

7. Hal I. Abramson, Mediation Representation: Advocating as Problem Solver (3d ed., NationalInstitute for Trial Advocacy 2013).

8. See e.g., Mediating Multi-culturally: Culture and the Ethical Mediator, (ch. 12) in Mediation Ethics(Ellen Waldman, Jossey Bass 2011) (Hal Abramson & Carrie Menkel-Meadow, commentators);see also, Carrie Menkel-Meadow, The Many Ways of Mediation: The Transformation of Tradi-tions, Ideologies, Practices and Paradigms, 11 Negotiation Journal 217 (1995) (suggesting thatmediation draws on ethnocentric models of a “talking cure” process for pragmatic problem-solving, not always useful in cultures that value different things or that do not have an “equality”or horizontal model of verbalization and joint, rather than hierarchical, problem solving).

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at present, it operates in a less clearly legally articulated global system.9 Wheremediation’s purpose is to provide a third party (neutral)10 to facilitate negotiation ofjointly and consensually arrived at solutions to legal disputes or transactions, usingprocesses developed by and agreed to by the parties themselves, it assumes (or canassume) that the parties share enough legal cultural understandings that they can makeboth process and outcome decisions together with somewhat varied forms of assis-tance, ranging from purely facilitative to more evaluative forms. In this, mediation’sadvantage is its flexibility, self-determination and voluntariness to enter into andconclude the process as the parties wish, especially when dealing with ongoing orfuture relations. Its disadvantage is precisely in its openness, its potential formless androotless connections to particular legal systems. That it should at least be a viable andwell-considered choice by all disputants in the modern world, should go withoutsaying in our currently “process plural” world, but it appears to be true that mediationis still not used as much as it might be, both in different domestic legal systems and ininternational disputes.11

Whether mediation is perceived as a better quality process by allowing the partiesto craft their own solutions to problems, disputes and transactions (the “qualitative”argument for mediation) or a more efficient one (the “quantitative” argument formediation as saving both litigants and the larger legal system time and money), whatconstitutes an “optimal” amount of mediation in any domestic or international legalsystem remains unclear. In its recent deliberations about whether the EU Directive onMediation (2008) has had appropriate results for transborder dispute resolution,commentators, using the language of the Directive, have argued for an appropriate“balance of mediation to litigation” to maximize cost reductions in litigation that couldstem from even a settlement rate as low as 9%.12 Authors of the EU Parliament report

9. Mediation agreements do not have the enforceability reliability guaranteed by the New YorkConvention for the Recognition and Enforcement of Foreign Arbitral Awards, see S.I. Strong,Beyond International Commercial Arbitration? The Promise of International Commercial Media-tion, 42 Wash. U. J. of Law & Policy (2014). The United Nations Commission on InternationalTrade Law (UNCITRAL) has recently begun an effort to consider whether a treaty, paralleling theNY Convention for Recognition and Enforcement of Foreign Arbitral Awards, should be draftedand adopted for recognition of mediation agreements in international commercial matters, seeUN General Assembly UNCITRAL Planned and Possible Future Work Part III, A/CN.9/822 NewYork, 7-18 July 2014 and Department of State, US Department of State Advisory Committee onPrivate International Law (ACPIL); Public Meeting on Conciliated Settlement Agreements, 79 Fed.Reg. No. 130, at 38642 (2014).

10. The concept of the mediator as “neutral” rather than as a wise elder or one who is not neutralat all, but deeply embedded in the relationship of the disputants is itself culturally variable, seeMenkel-Meadow, supra n. 8 and Martin Shapiro, Courts: A Comparative and Political Analysis(University of Chicago Press 1981).

11. Years ago James Henry, founder and President of the Center for Public Resources, suggested thatmediation was still a “sleeping giant” in the American business community’s use of disputeresolution processes. James Henry & Jethro Lieberman, The Manager’s Guide to Resolving LegalDisputes: Better Results Without Litigation (Harper Collins 1985). In the early days of mediationin the US, it was not uncommon to see demands for mediation, “I am instituting a mediationagainst you,” in demand letters or Continuing Legal Education programs labeled, “How to WinYour Mediation” demonstrating great misunderstandings of the process itself.

12. EU Rebooting Report, supra n. 2, 163-64.

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have urged the adoption of “mitigated mandatory mediation” as a method of encour-aging the use of mediation,13 a suggestion that has met with concern and criticism bythose who seek to keep mediation a more “pure” voluntary and consensual process.14

Several important cleavages mark the acceptability of mediation in differentnational legal systems and the larger world of “trans-” or “international” disputeresolution. We could begin with a glance at how major public international state-to-state disputes are handled, and the great resistance, until relatively recently, to effortsof mediation in international diplomacy,15 whether the “shuttle diplomacy” or “musclemediation” (like private caucusing) of Henry Kissinger and other international inter-veners,16 or the more formal attempts at negotiating and mediating disputes andtransactions and contracts (through treaties or ceasefires)17 which now characterizesome of our global political regime.

Mediation differs enormously in legal cultures of common law, as in the UnitedStates, United Kingdom, Canada and Australia, where much mediation law is craftedthrough case-by-case decisions, with little formal regulation in both the public andprivate sectors, as contrasted to the much more formal regulation of mediation in mostcivil law regimes with dense regulation (if still sporadic use; see the case study of Italy,discussed more fully below).18 Separate from legal traditions are the structures of

13. Id. The recommendations of the report actually go so far as to suggest possible “quotas” orspecific guidelines for ratios of mediated cases to litigated cases within any legal system. I amdeeply opposed to and skeptical of these suggestions.

14. Jacqueline Nolan-Haley, Is Europe Heading Down the Primrose Path with Mandatory Mediation,37 N. Carolina J. of Int’l L & Commercial Reg. 981 (2012).

15. See generally J.G. Merrills, International Dispute Settlement (5th ed., Cambridge 2011).16. See e.g., the contrasts of mediation styles and processes of Richard Holbrooke and George

Mitchell described in Daniel Curran, James K. Sebenius & Michael Watkins, Case Analysis: TwoPaths to Peace: Contrasting George Mitchell in Northern Ireland with Richard Holbrooke inBosnia-Herzegovina, 20(4) Negotiation J. 513 (2004).

17. Such as George Mitchell’s seeming so far success in the Easter Peace Accords in NorthernIreland, see George Mitchell, Making Peace (1999); see also Jimmy Carter’s successes andfailures as a third party “mediator” in Northern Korea and Israel-Palestine; Michael Watkins &Susan Rosegrant, Breakthrough International Negotiation: How great Negotiators Transformedthe World’s Toughest Cold War Conflicts (Jossey Bass 2001); Jimmy Carter, Palestine: Peace NotApartheid (Simon & Shuster 2007); Jimmy Carter, Keeping Faith (University of Arkansas Press1995); Lawrence Wright, Thirteen Days in September (2014).

18. Regulating Dispute Resolution – ADR and Access to Justice at the Crossroads (Felix Steffek,Hannes Unberath, Hazel Genn, Reinhard Greger & Carried Menkel-Meadow, Hart Publishing2013) [hereinafter Steffek et al.); Giuseppe De Palo & Ashley E. Oleson, Regulation of DisputeRegulation in Italy: The Bumps in the Road to Successful ADR, in Steffek et al., Id.; Giuseppe dePalo & Penelope Harley, Mediation in Italy: Exploring the Contradictions, Negotiation J. 469(2005). In my frequent participation in international conferences on dispute resolution, such asthose sponsored by the Max Planck Institute’s meetings on Comparative Law (Private) orMediation and Dispute Resolution, I am struck by the civil law world’s desire to codify andregulate dispute resolution’s goals, principles, best practices, processes and rules, see Steffek etal. Id., Ch. 2, compared to more open common law and decisional development with moretolerance of diverse practices and innovations in the common law worlds of the UK, US, Canada,Australia and New Zealand. The latter are perhaps more affected by their “ambivalent” orconflicting motives of both efficient and more humanistic dispute resolution, see discussion laterin this paper. Where the justification for use of mediation is “efficient” case processing or partyautonomy and control there might be a need for more regulation and uniform standards but Ithink this remains a contestable point.

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nation-states, whether centralized or federalized, which affect both the variation of useand regulation of mediation (with differential autonomy in states as in Germany andthe United States) and the possibility of capturing and controlling use and data (e.g.,more centralized Ministries of Justice tend to both regulate and “count” the number ofmediators and/or mediations, if not actually monitoring quality or uniformity inservice provision).

In addition to the formal differences of types of mediation or legal regimes inwhich they operate, it is never quite clear whether choices about dispute resolutionfora (and whether or not to seek or use mediation) are being made by the parties to adispute or by their professional advisors (whether lawyers, business executives,managers or others). 19 And awaiting future usage and analysis is the new world ofonline dispute resolution (ODR)20 which transcends national and legal sovereigntiesand raises a continuing set of issues about usage, level of regulation, and the possibilityof globalization of mediation and other forms of dispute resolution.

Finally, while assessments of the use of mediation or resistance to it often focuson legal contexts, in actuality, it is the larger social culture, and its interaction with thelegal culture, that probably has the greatest impact on the type of dispute resolutionmethods that are chosen in particular societies21 (varied as well, by case type,economic and personal access to services22 and cross-cultural variables when choicesare made in international or transnational disputes).

Mediative approaches have also been used in criminal matters domestically (e.g.,victim-offender mediation and restorative justice), with great nation-state variation,and are now utilized as well in international criminal and human rights matters, as intruth and reconciliation commissions, both the European and Inter-American Courts ofHuman Rights (“amiable settlement” procedures), and some forms of hybrid andindigenous courts.

19. Recent empirical work on understandings of expectations of dispute resolution processes haveexposed gaps of preferences and knowledge between clients and lawyers and mediators or otherdecision makers, see e.g., Tamara Relis, Perceptions in Litigation and Mediation: Lawyers,Defendants, Plaintiffs and Gendered Parties (Cambridge Univ Press 2009); David Lipsky,Emerging Systems for Managing Workplace Conflict: Lessons from American Corporations forManagers and Dispute Resolution Professionals (Ronald L. Seeber and Richard D. Fincher,Jossey-Bass 2003).

20. Mohamed S. Abdel Wahab, Ethan Katsh & Daniel Rainey, Online Dispute Resolution: Theory andPractice: A Treatise on Technology and Dispute Resolution (Eleven International Publishing2012).

21. Kevin Avruch, Context and Pretext in Conflict Resolution: Culture, Identity, Power and Practice(Paradigm Publishers 2012); Joel Lee & Hwee Hwee The, An Asian Perspective on Mediation(Academy Publishing 2009); Oscar Chase & Jerome Bruner, Law, Culture and Ritual: DisputingSystems in Cross-Cultural Context (NYU Press 2007).

22. Mauro Cappelletti & Bryant Garth, Access to Justice: A World Survey (GiuffrèEditore/Sijthoff/Noordhoff 1979); Mauro Cappelletti, Alternative Dispute Resolution Processeswithin the framework of the World-Wide Access to Justice Movement, 56 Modern Law Review 287(1993).

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§3.01 LEGAL VARIATIONS IN THE USE OF MEDIATION

In recent years, several comprehensive efforts to study and account for the use ofmediation in some parts of the world have demonstrated great variety of mediationregulation and usage and a less than optimistic view of the relationship betweenenabling or encouraging legislation or procedural rule drafting and the actual usage ofmediation.23

In a very comprehensive study of the usage of mediation in the EU, following theEuropean Directive on Mediation (2008/52/EC), Giuseppe De Palo and his team ofanalysts found that there was great divergence in how the twenty-eight Member Statesof the European Union have legislated about mediation in cross-border disputes asmandated by the Directive. While some countries have used the Directive’s mandate tobecome “unitary” or “monist” states by simultaneously providing rules and proceduresfor both cross-border and domestic mediation, many states remain “dualist” regimes,passing legislation to provide for mediation of cross-border commercial disputes asrequired by the Directive and either passing separate or no rules at all for domesticmediation.24

The EU Report, which documents the great resistance to mediation by analyzinglow usage rates of mediation in most countries now three years after full effect of theDirective,25 does provide some interesting data and other observations. Notably, Italyhas had the most mediation regulation with a tapestry of statutes and amendmentsbeginning before the Directive in the 1990s; and Italy seems to have the highest numberof “documented” mediations – over 200,000 in recent years, compared to the nextbiggest users, the UK (60,000) and Germany and the Netherlands (over 10,000 each) asreported by expert country informants. Ironically, however, when mediation was mademandatory for certain classes of civil cases in Italy, the Italian bar famously went outon strike in 2011 against the use of mediation (fearing loss of litigation fees), which wasfollowed by a December 2012 Constitutional Court ruling that the mandatory media-tion program violated the Italian Constitution, calling a halt to already much delayedcivil actions in courts. The lawyer strike and the Constitutional decision, whichreceived international attention, resulted in a renegotiated mediation law and media-tions have once again begun in Italy.26 Low usage rates are also reported for France,

23. See e.g., Regulating Dispute Resolution, supra n. 18, EU Report Retooling the EU Directive onMediation, supra n. 3; Klaus Hopt & Felix Steffek, Mediation: Principles and Regulation inComparative Perspective (Oxford Univ. Press 2013); Giuseppe De Palo & Sara Carmeli, Mediationin Continental Europe: a Meandering Path Toward Efficient Regulation, in Butterworths Media-tors on Mediation: Leading Mediator Perspectives on the Practice of Commercial Mediation(Christopher Newmark & Anthony Monaghan, Tottel 2005),; Giuseppe de Palo & Mary Trevor,EU Mediation Law and Practice (Oxford University Press 2012); Manon Schonewille & FredSchonewille, The Variegated Landscape of Mediation Regulation: A Comparative Study ofMediation Regulation and Practices in Europe and the World (Eleven International Publ. 2014);Nadja Alexander, International and Comparative Mediation: Legal Perspectives (Kluwer 2009).

24. Denmark is not party to the Directive at all, having opted out of all EU Legal Affairs regulation.25. Estimated at no more than 1% of all litigated cases in the EU, EU Rebooting Report, supra n. 2,

162.26. Giuseppe de Palo & Ashely Oleson, Regulation of Dispute Resolution in Italy: Bumps in the Road

to Successful ADR, in Steffek et al., supra n. 18.

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Belgium, Spain and other countries with legislation providing for mediation training,mediator registration, and some substantive rule-making, e.g., with respect to confi-dentiality and enforceability. The Netherlands reports a much more comprehensivecourt-based system of ADR usage, in part because of the championing of mediation andother forms of ADR by prominent judges and legal officials27 (a story similar to that inArgentina, see below, suggesting that personal commitments and charisma can be asimportant in mediation development as more formal legal reforms). Switzerland (not amember of the EU) has similarly low usage rates though it has many arbitration anddispute resolution programs and institutions operating within its borders (includingnot only many commercial arbitration centers and programs, but the InternationalCourt of Arbitration for Sport in Lausanne, as well as housing many internationalorganizations, with dispute settlement portfolios, in Geneva, such as the Interna-tional Labor Organization, World Intellectual Property Organization and the WorldTrade Organization.

Civil law countries, of course, must “codify” their laws and procedures insubstantive provisions of law and civil procedure. The European nations have passedsome fairly diverse laws, especially with respect to confidentiality and enforceability.For example, some countries protect only the mediator from subsequent testimony andallocate privilege and other countries make the entire proceeding confidential. In a fewnations, mediation agreements can become automatically enforceable, if properlynotarized. In some other nations, mediation agreements become enforceable afterjudicial approval or other formalities and still others treat mediation agreements, as wedo in the US, as enforceable “contracts.” The EU Report concludes that the depth orextent of confidentiality protection has had no discernible effects on mediation usageso far, challenging the claims of some that mediation is most beneficial when theparties seek confidential proceedings or outcomes.28 The use and regulation ofmediation also varies by case type – many countries have been using mediationprimarily in family and domestic disputes (e.g., UK, France, Netherlands) and labor

27. Machteld Pel, Regulation of Dispute Resolution in the Netherlands: Does Regulation Support orHinder the Use of ADR in Regulating Dispute Resolution, supra n. 18.

28. When I was a mediator in the US Wellington Agreement for mediation of major asbestoslawsuits, I was often chosen as a mediator because my state (California) then had one of thestrongest mediation confidentiality statutes in the country (mid 1980s to 1990s). Despite effortsto unify confidentiality rules in the United States through the Uniform Mediation Act (2003), atthis date only thirteen states have passed the UMA. So far as I can tell, state variation inconfidentiality protections has not affected mediation usage. An interesting empirical questionis whether the states with the most ADR or mediation regulation (certification, mandatory courtprograms or referrals, ethics rules, etc., e.g., Massachusetts, New York, Florida, Texas andothers) have any greater usage of mediation or not. I was unable to study this when analyzingdata on empirical measures of ADR usage in the US because of the unavailability, not only ofpublic data from court programs, but because mediation in private settings is unreported in anysystematic way, see Carrie Menkel-Meadow, Regulation of Dispute Resolution in the UnitedStates of America: From the Formal to the Informal to the Semi-Formal, in Regulation of DisputeResolution –ADR and Access to Justice at the Crossroads (F. Steffek, H. Unberath, R. Greger, H.Genn, C. Menkel-Meadow, Hart Publishing 2013); Carrie Menkel-Meadow, Empirical Studies ofADR: The Baseline Problem of What ADR Is and What It is Compared to, in Oxford Handbook ofEmpirical Legal Research (paperback ed. 2013, Peter Cane and Herbert Kritzer, Oxford Univer-sity Press 2010).

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disputes (e.g., France, Spain, Portugal, Chile) for some time and regulation of suchmatters can be found both in substantive laws and procedural rules.29 Other factorsthought to affect mediation usage in Europe (certain incentives, such as reduced fees ortaxes in litigation, following mediation use, informational programs for lawyers andlitigants) all were found to have no correlational effects on rates of mediation usage.30

Other countries have used both legislation and mandatory program designs toencourage the use of mediation. In the United Kingdom, major revisions to the Rules ofCivil Procedure in the late 1990s, following the Woolf Report,31 were intended to “frontload” case management and encourage use of mediation and other forms of ADR in thepublic justice system. Mandatory assignment of smaller claims and domestic relationscases were intended to provide cheaper, better and faster access to justice.32 At thesame time that the formal court rules underwent change, organizations such as theCentre for Effective Dispute Resolution (CEDR) developed a successful market in largerscale commercial disputes (including both international and domestic cases) in one ofthe largest financial centers of the world. While the private sector extolled the virtuesof mediation for large commercial cases, early enthusiasts of mediation changed theirtune, mostly notably Dame Hazel Genn, whose 2008 Hamlyn Lectures33 decried the“privatization of justice” (echoing similar critiques made in the United States by suchADR critics as Yale Professors, Owen Fiss34 and Judith Resnik35). Like in the UnitedStates (and Canada and Australia and other common law systems), the regulation ofmediation has been more complex as courts decide on a case-by-case basis what rules,duties, obligations and requirements to make of parties in litigation. The UnitedKingdom, for example, concerned that Article 6 of the European Charter of HumanRights, which guarantees certain rights to hearings and due process, might prohibitmandatory assignment to mediation or other forms of ADR, has somewhat softened themandatory referral, through court decision, while at the same time providing that in a“loser pays” system, a party who unreasonably refuses to go to mediation might betaxed by paying or not receiving costs according to the cost rules.36 In recent rulings,English courts have also required recipients of legal aid to utilize methods of ADRbefore they can go to court.37 Thus, analyzing and measuring the effects of different

29. Indeed, for one researching the formal law on mediation, it is necessary in most legal systems tolook at both substantive regulation and civil procedure and other process rules, especially insuch regimes, which include both civil and common law systems, where allocation of somesubstantive rights are referred to particular tribunals, e.g., labor in most civil law countries andthe UK.

30. EU Rebooting Report, supra n. 2.31. Lord Woolf, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in

England and Wales (HMSO 1995).32. Hazel Genn, Shiva Riahi & Katherine Pleming, Regulation of Dispute Resolution in England and

Wales: A Skeptical Analysis of Government and Judicial Promotion of Private Mediation, inRegulating Dispute Resolution, supra n. 18.

33. Hazel Genn, Hamlyn Lectures on Judging Civil Justice (Cambridge University Press 2009).34. Owen Fiss, Against Settlement, 93 Yale L.J. 1073 (1984).35. Judith Resnik, Many Doors? Closing Doors? Alternative Dispute Resolution and Adjudication, 10

Ohio St. J. Disp. Res. 211 (1995).36. Dunnett v. Railtrack plc [2002] EWCA (Civ) 2003. Cf. Halsey v. Milton Keynes General NHS Trust

[2004] EWCA (Civ) 576.37. Genn, supra n. 33, 145.

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forms of legal requirements on the use of mediation is complicated in common lawsystems where case law can modify the more codified statutory or civil proceduralrules. Beyond the UK, consider the complexity of common law federal systems likeCanada and Australia where some provinces (Ontario) and states (New South Walesand Victoria) have developed pro-ADR or mediation policies and law that vary fromother jurisdictions.

Israel presents another interesting case of mediation legal ambivalence. In anation with the greatest per capita rate of lawyers to population38 (and a concomitantamount of litigation), Israel also provides both for court-mandated and privatemediation.39 As part of an effort to affect change in a highly disputatious legal system,then President of the Israeli Supreme Court, Ahron Barak, encouraged the use ofmediation, not to control the efficiency of the system (with many cases and not enoughjudges in the 1990s) but to attempt to change the legal culture toward a moreconciliatory one. Yet, even with laws to require mediation and attempted incentivestructures and much mediation training, commentators, like Moti Mironi, the formerhead of the Israeli Mediator’s Association and a distinguished international labormediator, have noted that use of mediation has regressed to mechanistic case settle-ment meetings, as provided for by civil procedural rules which, in his view, drainmediation of its more consensual, party-oriented and true conflict-resolving at-tributes.40 This pattern of legal encouragement, much professional training, initialenthusiasm and then regression to conventional legal processes is notable in manyother countries.

While Israel represents a country with clear policy discussions of the purposes ofmediation (whether to encourage “qualitative” mediation or deploy it for “efficiency”and docket-clearing purposes), many other countries adopt laws and regulationswithout clear indications of which purpose(s) are to be served. Motivations formediation use—to better solve problems or recraft future relations versus efficientdocket-clearing purposes—are different and can (and perhaps should) result in differ-ent legal frameworks. Belgium, for example, has had a relatively efficient legal systemwith less delay in litigation time and has been able to structure mediation programsaround the values of promoting good legal solutions.41 Singapore is another countrywith a Janus two-faced approach to mediation—both seeking to be a center of more

38. D. Barak-Erez, E. Katyal & T. Rostain, Too Many Lawyers? Fact, Reasons, Consequences andSolutions, 3 Onati Socio-Legal Series n. 3 (2013).

39. Mediation is called “gishur” in many contexts, which actually translates to “bridge” – themediator serves as a metaphorical and actual bridge between the parties. See Moti MordehaiMironi, Mediation and Strategic Change (Hamilton Books 2008); Moti Mordehai Mironi,Mediation v. Case Settlement: The Unsettling Relations Between Courts and Mediation in Israel,19 Harv. Neg. L. Rev. (2014).

40. Ibid.41. See Ivan Verougstraete, Regulation of Dispute Resolution in Belgium, in Regulating Dispute

Resolution, supra n 18. Belgium and the Netherlands have both had significant leadership inADR and mediation sponsorship from the judiciary. It not surprising therefore, that in suchcountries (and especially in civil law countries), there has been much advocacy for incorporat-ing all mediation within the judicial and court system. The common law countries, notably theUS and the UK have seemingly been much more comfortable with letting mediation remainprimarily market based, especially in large commercial litigation.

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evaluative and enforceable international commercial mediation, as well as to encour-age mediation internally as “primary justice” in order to promote a warmer, morecourteous, and kinder society within its multicultural population.42 Singapore, as amulti-cultural society, seeks to partner with the International Mediation Institute tobecome a center of mediation practice, with training and formal credentialing of“intercultural” mediation.

Argentina, in the Southern Cone, became one of the early adopters of mediationafter several prominent judges and lawyers received training in the United States andinvited ADR consultants to Argentina at a time of great legal change. Following thedemocratic recovery of the Constitution, after the military dictatorship of the Dirty Warperiod (1976–1983), Argentina also began to mandate mediation in certain kinds ofcivil cases and Casas de Justicia (Houses of Justice) providing mediation services wereestablished in some of the more remote provinces of the nation.43 More recently, Chile(a more arbitration-based and formal legal culture in its alternatives to litigation) andBrazil (with an enormous population and rapidly growing commercial disputes44) andParaguay—all members of Mercosur—have passed UNCITRAL-based model rules forarbitration and other forms of dispute resolution while increasing programs of media-tion training within various professions. As discussed more fully below, differentnations now vie in South America, as in Asia (Singapore, Hong Kong and Shanghaicompetitions), to become “dispute resolution centers” by passing laws to make theircapitals “dispute resolution friendly” (usually involving choice of neutrals, confiden-tiality and enforceability provisions), illustrating what some scholars have called a“competition for dispute resolution services.”45

§3.02 CULTURAL FACTORS IN THE USE OF MEDIATION

It is ironic to note that often countries right next to each other or with remarkablysimilar legal systems will have radically different uptake of legal system innovations(this can apply to constitutions, statutory and administrative developments, just as

42. In Singapore, the Mediation Center is housed in the same building as the Supreme Court.Singapore seeks to become a centre of transnational and particularly trans-Asian commercialmediation, while at the same time it encourages the use of internal mediation for settlement ofcommon civil disputes, what one commentator has called the “ambivalent rationale of media-tion” (Ian Macduff, communication Jun. 8, 2014), see https://app.supremecourts.gov.sg/Data/Files/file/InforBooklet_Brochures/Newsletter_Dec2013.pdf (accessed Jan. 22, 2016).

43. See e.g., Timothy K. Kuhner, Court Connected Mediation Compared: The Case of Argentina andthe United States, 11 ILSA J. of Int’l & Comp. Law 8 (2013). One of the judges to train inmediation Gladys Alvarez not only innovated in-court mediation but also founded FondacionLibre, the leading training institution for mediation in Argentina. These early initiatives inArgentina did not necessarily travel to neighbors Chile and Brazil, though the latter now has avibrant and large mediation professional base, with an annual national Congress on mediacion.

44. As well as what I have referred to in other contexts, as A2 DR (alternative alternative disputeresolution) – largely effective “mediation” by threat of force in gang leader-favella informaljustice. This occurs in the United States as well, see Sudhir Venkatesh, Gang Leader for a Day:A Rogue Sociologist Takes to the Streets (Penguin Books 2011).

45. Bryant Garth, Privatization and the New Market for Disputes: A Framework for Analysis and aPreliminary Assessment, 12 Stud. L. Pol & Socy. 367 (1992).

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much as ADR implementation). Yet, broad comparative law groupings (civil law,common law, post-colonial, Shari‘a), legal hybrids (e.g., Scotland, Israel, Japan,China), and now regional legal systems (like the EU) also show some cultural regularitywith respect to certain legal institutions and processes.

As mediation is less formally rule and procedure based than litigation orarbitration, less homogenization of the rules and processes is required. Nevertheless,the use of mediation remains somewhat dependent on the specifics of local legal andsocial culture and also dependent on the charismatic leadership of various legalinnovators in particular systems.

From my own experience in mediating or teaching in many different countries(now over twenty-five countries on six continents), it might be somewhat useful (if abit arbitrary) to characterize some social-legal cultures as more or less likely to usemediation as a dispute resolution mode, depending on whether they are more or less“argumentative,” “adversarial,” “conversational or dialogic,” “face saving” or “hybrid-cosmopolitan” cultures. Ordinarily I quite deplore the systematic and stereotypicdescriptions of “civilizations”46 or cultures and even so-called elements of “disputingcultures”47 that tend to homogenize and reify what may be quite complex and variedcombinations of cultural factors (professional status, class, education, function, etc.),48

but in viewing the variations of mediation usage around the world, I have come tobelieve that something like these cultural formations deeply influence both legislation-rule-making and the actual practice of mediation as a form of dispute resolution (whilein turn being affected by case types within particular legal systems). Thus, both “lawon the books” and “law in practice” in the ADR arena are quite variably dependent onsocial, not only legal, factors.

Thus, I suggest here that the uptake of mediation will not likely be a unitarydevelopment or follow a clear trajectory throughout the world. Different forms ofmediation have been and will be developed within and across different legal systemsand types of disputes, often responding to different motivations and goals. In describ-ing recent developments in the use of ADR in the United States, I have described formsof dispute resolution as formal (full-dress litigation and its ancillary discovery andcourt-based processes), informal (more of the private and flexible forms of mediationand like processes that have developed away from courts, e.g., private commercial anddomestic relations disputes) and the semi-formal (use of informal processes likemediation in the courts, without much supervision or more formal rules, andadjudication-like processes in the private sector, like commercial or labor arbitra-tion).49 These categories might ultimately be helpful in considering what is occurring in

46. See e.g., Samuel Huntington, Clash of Civilizations and the Remaking of World Order (Simon &Schuster 1994); Edward H. Hall, Understanding Cultural Differences: Germans, French andAmericans (Intercultural Press 1990).

47. See e.g., Jeanne Brett, Negotiating Globally: How to Negotiate Deals Resolve Disputes and MakeDecisions Across Boundaries (Jossey-Bass 2001); Jeswald Salacuse, The Global Negotiator:Making, Managing and Mending Deals Around the World in the 21st Century (St. Martin’s Press2003).

48. See Kevin Avruch, Culture and Conflict Resolution (USIP Press 1999).49. See Menkel-Meadow, supra n. 4.

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international mediation and dispute resolution as well, as transnational litigation andits alternatives increasingly occur in so many different countries, tribunals andvenues.50 I give some illustrative examples from my own experience below.

Argumentative cultures51 include not only the United States, but others that arecomfortable with both public and private disputes (some might call us the more“voluble” cultures) and include such places as Italy, Israel, India, to some extentAustralia and Canada, Argentina52 and more recently the UK.53 Such dynamic andsome would say “conflictual” societies are actually often home to the most plural anddiverse set of dispute resolution options. Thus, mediation has often been taken upenthusiastically while more conventional litigation procedures exist side by side. TheUS, Canada54 and Australia and, to some extent, the UK, have formally attached moreinformal processes to the courts, all while maintaining less formal and private forms ofmediation and dispute resolution in parallel, but sometimes separate “markets” (e.g.,labor arbitration, construction disputes, specific industry dispute resolution pro-grams).55 These societies are also increasingly multi-cultural so in addition to formaldispute resolution, there are also dispute resolution processes used for specificcommunity, religious56 and commercial groups.

Argumentative legal and social cultures have developed and tolerated a widevariety of dispute resolution fora and processes. Mediation exists in the courts and outof them, used by public bodies and private disputants. Because many, if not most, ofthese countries are also common-law based, they actually may have fewer legalregulations, a more porous and flexible legal system and can adapt legalities and legaldoctrines to actual use and practice as it occurs, rather than a priori.

If the domain of international legal disputing can be seen to be like this“argumentative” culture then it too will continue to evolve with process pluralism.Mediation use should increase with more international and transnational interactionsand needs for more flexible and party-tailored solutions to legal issues. As we watch thead hoc quality of mediated ceasefires in the many recent international and intra-national conflicts in the world, we see some evidence that these informal processes are

50. It is beyond the scope of this paper to reflect on the scholarly and practical debate about whetherthe plethora of international legal tribunals is a good thing or is fracturing and fractionalizing ourinternational legal order. See e.g. Robert Ahdieh, Between Dialogue and Decree: InternationalReview of National Courts, 79 NYU L. Rev. 2029 (2004); Yuval Shany, The Competing Jurisdic-tions of International Courts and Tribunals (Oxford University Press 2003).

51. See Deborah Tannen, The Argument Culture (Random House 1998).52. I will have more to say about Argentina below, but in a multi-cultural immigrant based society

with the highest per capita presence of psychiatrists, arguments and self-reflection, complexityand disputes are endemic, even if military dictatorships often throw Argentina into a morehierarchal and authoritarian camp.

53. Compare Parliamentary debates (even with rules) to Congressional debates!54. Julie Macfarlane, The New Lawyer: How Settlement is Transforming the Practice of Law (UBC

Press 2008).55. See both Center for Public Resources Industry specific dispute resolution programs (e.g., energy,

franchising, banking, health, etc., and Lisa Bernstein, Opting Out of the Legal System: ExtralegalContractual Relations in the Diamond Industry, 21 J. Legal Studies 115 (1992).

56. See e.g., Michael Helfand, Religious Arbitration and the New Multi-Culturalism: NegotiatingConflicting Legal Orders, 86 NYU L. Rev. 1231 (2011); Id. Between Law and Religion: ProceduralChallenges to Religious Arbitration Awards, 90 Chicago-Kent L. Rev. (2014).

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being used more than the many formal international courts and tribunals we haveestablished to deal with such conflicts, perhaps echoing the way in which informaldispute processes, though operating in the “shadows” of courts domestically, mightactually be more effective at resolving disputes.

Adversarial cultures, of which the US is also a part (as are virtually all of thecommon law countries), are committed to court (and debating and political democ-racy) processes as the primary method for resolving legal claims, especially when adefinitive ruling is necessary. Philosopher Stuart Hampshire has noted the importanceof adversarial processes for exposing competing claims and principles, but thenallowing for definitive decisions to be made so that diverse parties (and nations?) canmove on productively.57 In some sense, the international commercial arbitrationcommunity can be assimilated to the practice of this legal culture by virtue of itsadoption of hybrid legal rules to provide evidence and arguments to a party-chosenpanel when the need to “resolve” a dispute and compensate for it is deemed necessary,with a formal award and legal enforceability. Many civil law countries would likely seetheir so-called inquisitorial system producing similar results with slightly differentprocess rules. At the same time, the excessive “formalism” of code or statutory regimesmay actually inhibit the use of mediation.58 The question of whether truly internationalor transnational disputes are best served with formalized rules and arguments,followed by authoritative decisions remains to be seen. As I have argued in manydomestic and international contexts, less formal, more contingent and open-endedprocesses allowing party tailoring and revisiting of outcomes may actually be moreappropriate.59

Legal orders, which include both nation-states and more regional regimes (EU,Mercosur, Association of South East Asian Nations (ASEAN), North American FreeTrade Association (NAFTA)), which are newly developing or are reconsidering theirforms of legal, economic and political order (Eastern Europe after the fall of the BerlinWall, South Africa, other “transitional” societies, post conflict, colonialism or dictator-ship), may be more “dialogic” or “conversational,” about deciding how they willresolve their legal and political disputes, trying out hybrid institutions (new forms ofcourts and tribunals) and processes (indigenous processes like Rwanda’s gacaca orSouthern Africa’s ubuntu) and thus may also be open to more pluralistic andparticipatory forms of dispute resolution. Some of the Southern Cone falls into thiscategory. In my work in Argentina, Chile, Paraguay and Brazil, I have seen new

57. Stuart Hampshire, Justice is Conflict (Princeton University Press 2000); “audi alterum partem”(hear the other side as the guiding principle of adversarial and democratic decision-making).

58. In our recent multi-national efforts to prepare some model standards, principles, and approachesto regulation of mediation at a Max Planck comparative law hosted conference, German co-hostsand their European colleagues created a formalistic document called “Guide for RegulatingDispute Resolution: Principles,” involving taxonomies and definitions of dispute resolutionprocesses to produce efficiency and enable party choice. The British and the Americanparticipants (including this author) did not sign on to these principles as being too formalistic forour more complex definitions and principles of dispute resolution, see Regulating DisputeResolution (F. Steffek et al. eds, supra n. 18, Ch. 1 and 2).

59. Carrie Menkel-Meadow, Complex Dispute Resolution, Foundations, Multi-Party and DemocraticDecision Making, and International Dispute Resolution, Introductions (Ashgate 2012).

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generations of legal professionals seek to take up mediation as a way of softening thehard edges of corrupt courts and even conventional arbitration, often still seen as aproduct of the various “colonizers.” In transitional societies (as with our “transitional”international legal order) the question remains how much pluralism and variety canexist within new, untried legal and political structures when issues of fairness, accessand resources still abound (not to mention possible corruption of old regimes as theymeet up with new ones). This category of dispute resolution culture also includes thosecultures, like many in Africa, which are either still using traditional forms of commu-nitarian dispute resolution (e.g., ubuntu, gacaca) or adapting these old traditionalpractices to newer hybridized versions. Some of these nations formally recognize suchforms of dispute resolution in statutes, some even allowing enforcement of agree-ments.60

In so-called face-saving or harmony cultures,61 mediation or some form ofconciliation may actually be the preferred method of dispute resolution. In suchcultures, zero-sum or binary conceptions of what is at stake or ordered in a winner-take-all arbitration award is less likely to be acceptable to many parties. Future, ratherthan past, orientation to the dispute and preservation of the community or family orrelationship, rather than individual justice, may offer alternative goals for a disputeresolution system. So, controversially and stereotypically, many assume Asian cultures(itself an essentialized and homogenized assumption about quite different legalregimes) will choose mediation. As mediation and conciliation are often used fordomestic relations and labor disputes in many western nations, scholarly debates rageabout whether there is too little recourse to formal courts in Japan62 or co-optation oflegal rights in China by uses of both traditional and more modern forms of mediation.63

Now that Hong Kong is formally part of China and Shanghai has become a ma-jor commercial center of both Chinese and international development, both of thosecities are more likely to be part of the hybrid-cosmopolitan dispute resolution cul-ture described in the next paragraph, raising interesting questions about decentraliza-tion of dispute resolution preferences within nations, depending on the context ofinternational disputes.

60. See e.g., Ghana Alternative Dispute Resolution Act of 2010. Jacqueline-Nolan Haley & JamesKwasi Annor-Ohene, Procedural Justice Beyond Borders: Mediation in Ghana, Harvard Negotia-tion Law Review Online (2014); Janine Ubink, Access v, Justice: Customary Courts and PoliticalAbuse, Lessons from Malawi’s Local Courts Act, American Journal of Comparative Law (2015).

61. Anthropologist Laura Nader’s somewhat derisive critique of American uses and exportation ofmediation models is called “harmony” culture, where she suggests values of peace and conflictavoidance can lead to pacification and compromise and the absence of “justice” when parties(often of unequal power) are coerced or encouraged to settle their claims, see Laura Nader &Elisabetta Grande, Current Illusions and Delusions about Conflict Management in Africa andElsewhere, 27 Law & Soc. Inquiry 573 (2002).

62. See e.g., Mark Ramseyer, Reluctant Litigant Revisited: Rationality and Disputes in Japan, 14 J.Japanese Stud. 111 (1988); Frank Upham, Law and Social Change in Postwar Japan (HarvardUniversity Press 1987); John Haley, The Spirit of Japanese Law (University of Georgia Press2006) (debates on Japanese litigation and conflict avoidance culture).

63. Benjamin L. Liebman, Professionals and Populists: The Paradoxes of China’s Legal Reforms, inChina Behind the Headlines (3d ed., Timothy Weston & Lionel Jensen, Rowman & Littlefield2012); Stanley Lubman, Dispute Resolution in China After Deng Xiaoping: Mao and MediationRevisited, 11 Colum. J. of Asian law 229 (1997).

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In analyzing the use of mediation in any legal regime, it is useful to study howpreferences and rules may differ for domestic and international disputes – what is nowrecognized in the European environment as unitary or dualistic mediation regimes.Here, a controversial literature debates whether social cultures of collectivism orindividualism affects the choices and legitimacy of different collectivist or individualforms of dispute resolution, with controversies about whether dispute resolution isindividualized, past-fact settling, truth finding and compensatory, or collectivist,future-focused, peace seeking and restorative,64 and whether preferences for “in-country” dispute resolution processes are the same or different for inter-countrydisputes.

Finally, a number of legal commercial dispute resolution centers have emerged todemonstrate a hybrid or cosmopolitan dispute resolution culture. The great commer-cial arbitration centers hosting arbitration tribunals, e.g., Cairo, Stockholm, Geneva,Paris, London, New York and Hong Kong are now meeting with competition fromnewer centers in Singapore, Santiago, Buenos Aires (all establishing new quasiprivate-public Arbitration and Mediation Centers) so that all private tribunals are nowseeking to offer a greater array of dispute resolution processes. The relationship ofthese international centers within their larger national culture remains an interesting,if understudied phenomenon. In Singapore, for example, the domestic SingaporeMediation Center is located in the same building as the Supreme Court and asSingapore attempts to build a Pacific Rim “gateway to Asia” arbitration center, coursesand efforts to add mediation to international options sit parallel to an institutionalizeddomestic mediation program.65 As international disputes appear to be on the increasewith respect to traditional land (and island) and environmental claims in the China Seaand elsewhere in Asia (e.g., the “grey haze” dispute between Indonesia and itsneighbors Singapore and Malaysia) members of ASEAN have been promoting interna-tional diplomatic mediation as a preferred method of dispute resolution for internalASEAN disputes.

In addition to geographic hybridity, new international legal claims, such ashuman rights, law of the sea, international custody and child abduction treaties, havespawned new consideration of other forms of dispute resolution, including mediation.More modern treaties are more likely to provide a menu of dispute resolution options,now often including mediation (even if, once again, legal authority for transborder

64. See e.g., Walter A. Wright, Cultural Issues in Mediation: Individualist and Collective Paradigms,mediate.com (Jan. 2000), http:www.mediate.com/articles/wright.cfm (accessed Jan. 22, 2016);Ian Macduff, Contradictions and Conflict: High and Low Context Communication in Mediation,in Joel Lee & Teh Hwee Hwee, An Asian Perspective on Mediation (Academy Publishing 2009);Edward T. Hall, Understanding Cultural Differences: Germans, French and Americans (Intercul-tural Press 1990) (more focused on high and low context cultural differences); H.C. Triandis,Individualism and Collectivism (Westview Press 1995).

65. When I taught at the National University of Singapore a few years ago, hundreds of blogcomments followed a controversial mediation of housing complaints about spicy food cookingin the multi-ethnic state-supported housing developments. Citizens felt quite free to commentrobustly about the nature of the mediation, the “decision” of the mediator (sic), and whether themediation was resolving a single issue between two families or a much larger societal issueabout multi-cultural living and underlying ethnic tensions. All this in a country often accused ofsuppressing speech and political dissent!

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mediation of such disputes remains somewhat problematic). Those engaged in inter-national public law claims argue for complex forms of global governance that often areintended to create their own legal authority, as well as their own legal processes. Insuch contexts, international mediation, with all of the complexities of interculturalmediation, may establish itself as its own legitimate form of public internationaldispute resolution, but these are still relatively early days.

§3.03 SOME CONCLUDING THOUGHTS

In my view, there is still resistance to mediation in many kinds of disputes, rangingfrom the continued preference for established international commercial arbitration inmost private, and much public, economic dispute resolution to diplomatic matters, andto transborder and internal disputes in many of the world’s legal systems. But modernmediation did not come to easy and ready acceptance in the United States either andmany would still claim it has a secondary or tertiary place, behind conventionallitigation (and unassisted dyadic negotiated dispute settlement) and arbitration. Unlikeothers who may seek to expand mediation usage primarily as a method of efficiency(either for the parties or for legal systems generally),66 in my view, mediation usageshould be encouraged and expanded when it is the most appropriate process fordispute resolution – when flexible, future-oriented, party tailored, creative, resource-expanding solutions are sought, or the relations of the parties are to be continued insome form (or should not be made worse by brittle and binary decisions).67 If partiesseek to control the process of their dispute resolution, choose to pick their helpers,want to frame their own solutions, prefer some confidentiality to protect their businessor personal interests (when public transparency is not otherwise required), thenmediation may be the most appropriate way to resolve particular matters.

To reduce inappropriate or ignorant resistance to mediation, we must clearlyeducate lawyers, clients, parties, governments, bar and regulatory bodies, and diplo-mats and national leaders about what mediation can (and cannot) do. We must also, inmy view, study and deal adequately with at least two major issues: potential issues anddifficulties in trans-cultural issues in mediation and appropriate international legalauthority for enforcement of decisions to mediate and ultimately, of mediated agree-ments themselves, provided such agreements meet the standards of internationallyaccepted notions of consensually arrived at mediated solutions.

I have long suggested that we take the long view of dispute resolution. Trial byordeal and combat were replaced by the more civilized trial by evidence hundreds ofyears ago in most legal cultures. At the present time, we are observing the many

66. See recommendations of Rebooting Report, supra n. 2.67. Lon Fuller, among other “jurisprudents” of legal process, reminds us that each process has its

own integrity and reasons for use; no one process is appropriate for all the variations humandisputing, see Lon Fuller, Mediation: Its Form and Its Functions, 44 So. Cal. L. Rev. 305 (1971)and Carrie Menkel-Meadow, Peace and Justice: Notes on the Evolution and Purposes of PluralLegal Processes, 94 Geo. L. J. 553 (2006). See also Orna Rabinovich-Einy, The Legitimacy of ADR(forthcoming); Michal Alberstein, Forms of Mediation and Law: Cultures of Dispute Resolution,22 Ohio St. J. Disp. Resol. 321 (2007).

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deficiencies of conventional litigation (both domestically and internationally) and Iprefer to take the long view that human legal processes are evolving to consider otherways of resolving disputes.68 (Is truth always necessary; can we create better solutionstogether, without a commanded, ordered and hierarchical process, can parties produc-tively participate in their own solutions?) Mediation is one step on that internationaland temporal road of evolution. In the international arena, we have clear evidence ofthat evolution as the growth of more mediative institutions and processes, like truthand reconciliation commissions,69 supplementing or substituting for some forms ofmore adjudicative human rights and international criminal justice processes, demon-strate a growing recognition that there may be more complex and sensitive ways tomanage and handle, if not totally resolve, disputes about the past, in order to movemore productively into the future. Mediative approaches to legal, political and socialdisputes are growing, even as conflict, both violent and legal, continues to challengeour abilities to peacefully resolve issues among us, while also pursuing just results.

68. Carrie Menkel-Meadow, Is the Adversary System Really Dead? Dilemmas of Legal Ethics as LegalInstitutions and Roles Evolve, 57 Current Legal Problems 85 (Jane Holder, Oxford UniversityPress 2005).

69. Patricia Hayner, Unspeakable Truths: Transitional Justice and the Challenge of Truth Commis-sions (2nd ed., Routledge 2011); Carrie Menkel-Meadow, Restorative Justice: What Is It and DoesIt Work?, 3 Annual Review of Law and Social Science 10.1-10.27 (Annual Reviews 2007).

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